BY ELECTRONIC MAIL DELIVERY 

Office of General Counsel 

Attn: Lisa J. Stevenson, Esq. 

Acting General Counsel 

Federal Election Commission 

1050 First Street NE 

Washington, DC 20463 

Re: Advisory Opinion Request 

Dear Ms. Stevenson: 

Pursuant to 52 U.S.C. § 30108, we seek an advisory opinion on behalf of Texas Majority PAC 

(“TMP”). TMP seeks to confirm that the costs of paid door-to-door canvasses – that promote 

state and local candidates but also reference or depict federal candidates or party committees – 

do not constitute in-kind contributions under the Federal Election Campaign Act of 1971 (the 

“Act”) and Federal Election Commission (the “Commission”) regulations. 

I. Background 

TMP is a nonfederal political committee registered as a general-purpose committee (“GPAC”) 

with the Texas Ethics Commission.

1 It was not established by a candidate (federal, state, or 

local), party committee, or their agents. 

Texas law permits GPACs to accept unlimited contributions but prohibits the use of corporate or 

labor treasury funds to make contributions to nonfederal candidates, party committees, or 

political committees other than committees that only undertake independent expenditure 

activity.

2

 Texas law also does not limit contributions from GPACs to Texas nonfederal 

candidates or party committees. Corporate and labor treasury funds may only be used for 

establishment or administration costs, such as office space and equipment, and independent 

1 Tex. Ethics Comm’n, Search Campaign Finance Reports, https://jasper.prd.tecprd.ethicsefile.com/jasperserverpro/flow.html?_flowId=viewReportFlow&standAlone=true&_flowId=viewReportFlow&ParentFolderUri/public/pu

blicData&reportUnit=/public/publicData/datasource/CFS/By_Filer_Name&decorate=no&SuperName=texas%20ma

jority&FilerType=ANY&FirstName=&CorrFlag=N&tecpp=u=PUBLIC2&7CexpireTime=Tue%20Jul%2025%202023%2006:23:41%20GMT0400%20(Eastern%20Daylight%20Time) (accessed Aug. 15, 2023). 2 Tex. Admin. Code, tit. 1 § 24.19; Tex. Elec. Code Ann. § 252.003(a)(4).

250 Massachusetts Ave NW, Suite 400 | Washington, DC 20001

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expenditures.3

 Accordingly, TMP maintains corporate and labor treasury funds in a separate 

account. TMP would not – because, under Texas law, it may not – use corporate or labor 

treasury funds to pay for the paid canvassing expenses described in this request.

TMP wishes to fund paid canvassing programs. TMP will retain vendors to carry out the paid 

canvassing programs. Managed by TMP’s paid staff, the vendors will design and produce 

canvassing literature and hire individuals to distribute the canvassing literature (hereinafter, the 

“Paid Canvass”). These individuals will be instructed to go to the homes of preselected voters 

and trained to read a script and record the voters’ answers to certain questions. Neither the staff 

nor the vendors will have a contractual or other business relationship with the voters whose 

homes will be visited by the canvassers. Nor will the voters be customers of these vendors or 

canvassers. In other words, the canvassers will approach voters’ doors in the way that any 

volunteer canvasser might do so for a political or religious cause. The voters are free, of course, 

to not engage with the canvassers and/or ask them to leave their premises and not leave any 

literature. The costs associated with the Paid Canvass include the canvassing literature and the 

personnel that will walk the literature to voters’ doors and read scripts to voters (if the voters 

permit them to do so).

TMP’s major purpose is to elect Democrats to state and local office in Texas. TMP’s major 

purpose does not include “[f]ederal campaign activity (i.e., the nomination or election of a 

[f]ederal candidate).”4 Therefore, it is not a “political committee” under the Act and is not 

registered as such with the Commission. TMP anticipates that federal candidates, nonfederal 

candidates, and party committees will work together in Texas as they do in other states. TMP 

also plans to coordinate its activities with candidates and party committees in Texas to the extent 

permitted by law. Accordingly, TMP anticipates that it will come into possession of nonpublic 

plans, projects, activities, or needs of candidates (federal and nonfederal) and/or political parties 

within the meaning of 11 C.F.R. § 109.21(d)(3). 

TMP wishes to refer to federal candidates and political parties in its canvassing literature and 

scripts. It plans to do so within the pre-election timeframes described in 11 C.F.R. § 

109.21(c)(4). TMP also plans that some of its canvassing literature and scripts will include 

express advocacy or its functional equivalent with respect to federal candidates. TMP’s paid 

canvasses that refer to federal candidates or party committees will not have non-communicative 

components; for example, they will not include offers to drive voters to polling places. 

TMP will not permit candidates (federal, state, or local), party committees, or their agents to 

finance, maintain, or control TMP. Specifically, candidates, party committees, and their agents 

will not be permitted to: 

• direct or participate in the governance through provisions of constitutions, bylaws, 

contracts, or other rules, or through formal or informal practices or procedures; 

• hire, appoint, demote, or otherwise control the officers, or other decision-making 

employees or members of TMP; 

3 Tex. Admin. Code, tit. 1 § 24.18(b); Tex. Elec. Code Ann. § 253.100(a). 4 Political Committee Status, 72 Fed. Reg. 5595, 5597 (Feb. 7, 2007). 

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• have common or overlapping officers or employees with TMP; or 

• make contributions, monetary or in-kind, in significant amounts or on an ongoing basis to 

TMP. 

Candidates (federal, state, or local), party committees, and their agents will not have any 

spending authority within TMP. They will not have any authority to approve TMP budgets or 

TMP expenditures, nor will they have authority to sign checks or initiate wires. Nor will federal 

candidates, party committees, or their agents have final approval authority with respect to any 

paid canvassing plan or piece of literature. TMP itself will exercise full direction and control 

over all such programs. In short, even though TMP plans to consult with federal candidates, 

party committees, and their agents on these paid canvassing programs, “[b]y themselves, such 

consultations do not constitute spending” by federal candidates, party committees, or their 

agents.5

II. Question Presented

Are costs associated with the Paid Canvass “contributions” to any federal candidate or political 

party committee that is depicted or referenced in the literature and/or script? 

III. Legal Analysis 

No. Because literature and scripts distributed via the Paid Canvass are neither an “electioneering 

communication” nor a “public communication,” they are not “coordinated communications” 

under 11 C.F.R. § 109.21. The Commission should therefore confirm that the costs associated 

with the Paid Canvass are not “contributions” to any federal candidate or political party 

committee that is depicted or referenced in the Paid Canvass literature and/or script. 

A. The Paid Canvass is not an electioneering communication.

An “electioneering communication” includes only “broadcast, cable, or satellite 

communication[s].”6 A paid door-to-door canvass is plainly not a broadcast, cable, or satellite 

communication. Accordingly, the Paid Canvass is not an electioneering communication.

B. The Paid Canvass is not a public communication.

A “public communication” is “a communication by means of any broadcast, cable, or satellite 

communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone 

bank to the general public, or any other form of general public political advertising.”7

 A paid 

door-to-door canvass is plainly not a broadcast, cable, or satellite communication, as noted 

above; nor is a paid door-to-door canvass a newspaper, magazine, outdoor advertising facility, 

mass mailing, or telephone bank. “Because Congress did not include door-to-door canvassing in 

the list of media enumerated in the statutory definition of ‘public communication,’ door-to-door 

canvassing could qualify as a ‘public communication’ only if it is a form of advertising and 

5 FEC Adv. Op. 2005-02 (Corzine) at 8. 6 11 C.F.R. § 100.29(a). 7 Id. § 100.26.

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therefore falls within the catch-all category of ‘general public political advertising.’”8

“The term ‘general public political advertising’ is not defined by the Act or Commission 

regulations.”9

 In its Explanation and Justification for the 2006 Internet Communication 

rulemaking (hereinafter, “the 2006 E&J”), however, “the Commission clarified the types of 

communications that qualify as ‘general public political advertising.’”10 The Commission noted 

that “[t]he forms of mass communication enumerated in the definition of ‘public communication’ 

... each lends itself to distribution of content through an entity ordinarily owned or controlled by 

another person.”11 For “an individual to communicate with the public using any of the forms of 

media listed by Congress, he or she must ordinarily pay an intermediary (generally a facility 

owner) for access to the public through that form of media each time he or she wishes to make a 

communication.”12 The Commission contrasted these types of communications – those requiring 

payment to an intermediary – from those communications that are “analogous to a 

communication made from a soapbox in a public square” where no intermediary is required to 

disseminate the communication.13 This latter category of communications were not “general 

public political advertising” and therefore not “public communications.” 

In Advisory Opinion 2022-20, the Commission opined that short-code text messages – a 

category of text messages that can only be sent to users who affirmatively opt-in to receive 

messages from the sender – are not “public communications.” Applying the analysis set forth in 

the 2006 E&J, the Commission reasoned that disseminating public communications “typically 

require[s] the person making the communication to pay to use a third party’s platform to gain 

access to the third party’s audience” and such communications are therefore sent “through a 

medium controlled, and to an audience established, by a third party.”14 The opinion, in other 

words, established a three-part test for a communication to qualify as “general public political 

advertising”: it must (1) require payment; (2) make use of a medium controlled by a third party 

intermediary; and (3) be received by an audience established by the third party intermediary 

“many of whom may have little or no interest in receiving the committee’s communications and 

do so only incidentally while reading the news” or “because they wish to use the third party’s 

website.”15 

The Commission’s opinion received four votes. The two dissenting commissioners also cited 

favorably to the 2006 E&J. But rather than adopt the majority’s three-part test, the dissenters 

concluded that “[t]hese types of communications share two key characteristics. First, they are all 

communications for which a payment is required ... Second, all general public political 

8 Concurring Statement of Vice Chair Caroline C. Hunter & Comm’rs Lee E. Goodman & Matthew S. Petersen, 

FEC Adv. Op. 2016-21 (Great America PAC) at 1-2 (Jan. 12, 2017) (quoting Internet Communications, 71 Fed. 

Reg. 18589, 18594 (Apr. 12, 2006)) (internal quotations omitted). 9 Statement of Comm’rs Shana M. Broussard & Ellen L. Weintraub Regarding Adv. Op. 2022-20 (Maggie for NH), 

FEC Adv. Op. 2022-20 (Maggie for NH) at 1 (Nov. 4, 2022). 10 Id. 11 Internet Communications, 71 Fed. Reg. at 18594. 12 Id. 13 Id. 14 FEC Adv. Op. 2022-20 (Maggie for NH) at 4-5 (Oct. 4, 2022). 15 Id.

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advertising communications rely on an intermediary to disseminate the message.”16 The 

dissenters parted ways with the majority only on the third prong of the majority’s proposed test: 

the requirement that the audience be established by the intermediary.17 Notably, the dissenters 

agreed that a public communication encompasses only those communications that rely on an 

intermediary to disseminate the message.

The Paid Canvass is not a “public communication” under either the majority test or minority test

because it does not rely on an intermediary to disseminate the message. The term “intermediary” 

means “an intermediate agent or agency; a go-between or mediator.”18 Vocabulary.com 

elaborates that “[a]n intermediary is someone who acts as a go-between or a mediator between 

two other people”19 and that: 

The word intermediary comes from the Latin intermedius, which is also the root word 

for intermediate. Inter- means between, and medius means the middle 

— intermediary retains that sense of being in the middle. Intermediaries are used to 

negotiate between two countries who are at odds, between a company and a client over a 

contract, between two bickering children, or between a boss and an employee in salary 

negotiations.20

An intermediary, in other words, does not include someone who is acting as the agent of one 

party (in this case, TMP) but not the other party (in this case, the voters).21 The vendors that 

TMP plans to hire and the individual canvassers hired by those vendors are agents of TMP for 

purposes of 11 C.F.R. § 109.3. Conversely, the individual canvassers have no contractual, 

business, or other relationship with the voters being canvassed. They have no more right to 

communicate with the voters than a campaign’s volunteers; voters may ask paid canvassers to 

leave their property or not leave behind the literature just like with volunteers. Hiring paid 

canvassers to go door-to-door, therefore, is no different than hiring a paid speaker to stand atop 

the proverbial “soapbox in a public square.” In both circumstances, there is no intermediary. And 

therefore, in both circumstances, there is no public communication. 

This is why a bipartisan group of FEC commissioners agreed in 2007 that paid canvassing 

communications are not “public communications.”22 And why three commissioners found in 

16 Statement of Comm’rs Shana M. Broussard & Ellen L. Weintraub Regarding Adv. Op. 2022-20 at 1, supra n.9 

(emphasis added). 17 Id. at 4 (“Our colleagues do not address this apparent inconsistency between their claim that ‘public 

communication’ can only be one in which the speaker pays to access a third party’s audience and the plain language 

of the statute which includes all mass mailings with no limitation based on how the audience was assembled.”). 18 Dictionary.com, “Intermediary,” https://www.dictionary.com/browse/intermediary (accessed Aug. 15, 2023). 19 Vocabulary.com, “Intermediary,” https://www.vocabulary.com/dictionary/intermediary. (accessed Aug. 15, 

2023). 20 Id. 21 See 11 C.F.R. § 110.6(b)(2)(i)(A), (D)-(E) (defining “conduit or intermediary” to exclude “[a]n individual who is 

an employee or a full-time volunteer working for the candidate’s authorized committee,” “[a] commercial 

fundraising firm retained by the candidate or the candidate’s authorized committee to assist in fundraising,” and 

“[a]n individual who is expressly authorized by the candidate or the candidate’s authorized committee to engage in 

fundraising ....”). 22 See Statement of Reasons of Vice Chairman David M. Mason & Comm’r Hans A. von Spakovsky at 9, MUR 

5564 (Alaska Democratic Party) (Dec. 21, 2007) (“Door-to-door canvassing is not ‘general public political 

advertising’ . . . [t]hus, door-to-door canvassing is [not] a ‘public communication.’”); Statement of Reasons of 

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2006 that handbills are not “public communications.”23 And why three commissioners observed 

in 2016 the “[t]he Commission’s longstanding position . . . is that door to-door canvassing is not 

a ‘public communication’ under 11 C.F.R. § 100.26, and therefore does not constitute a 

‘coordinated communication’ under 11 C.F.R. § 109.21.”24 The absence of an intermediary 

simply forecloses the possibility that the Paid Canvass can qualify as a “public communication” 

under the Commission’s regulation and precedents.25 

C. The Paid Canvass is therefore not a “coordinated communication” or a 

“contribution.”

To qualify as a coordinated communication, a communication must satisfy a three-pronged test: 

the communication must (1) be paid for by a person other than the campaign or party committee 

to which it would be a contribution (the “payment prong”); (2) satisfy one of the content 

standards (the “content prong”);26 and (3) be preceded by certain interactions between the 

sponsor of the communication and the federal candidate, authorized committee or political party 

committee (the “conduct prong”).27 Since adoption of the most recent version of the coordinated 

communication regulation in 2010, the Commission has consistently held that a communication 

qualifies as a “contribution” only if it meets all three prongs of the “coordinated communication” 

test set forth in 11 C.F.R. § 109.21.28

A communication that fails the “content prong” cannot be a “contribution” under the 

Chairman Robert D. Lenhard at 4, MUR 5564 (Dec. 31, 2007) (“Most of the costs related to the ADP’s field 

program were payments by the ADP for salaries and benefits of its employees, and for costs related to maintaining 

office space. As such, these costs were not for ‘public communications’ (such as radio ads and direct mail) as that 

term is defined in our regulations. These costs include door to door canvassing, manning campaign offices and other 

traditional grass roots activities.”) (citations omitted). 

23 Statement of Reasons of Chairman Michael E. Toner & Comm’rs David M. Mason & Hans A. von Spakovsky at 

5, MUR 5604 (Friends of William D. Mason) (Dec. 11, 2006). 24 See Concurring Statement of Vice Chair Caroline C. Hunter & Comm’rs Lee E. Goodman & Matthew S. Petersen, 

FEC Adv. Op. 2016-21 (Great America PAC), supra n.8. 25 In a few instances since adoption of the coordinated communication regulation in 2002, the Office of General 

Counsel has published analysis suggesting that literature distributed via a paid canvasses was a public 

communication. But in these cases, the Office of General Counsel’s analysis played no role in the ultimate 

disposition of the matter. See Factual & Legal Analysis, MUR 6924 (Andrew Winer, et al.) (Aug. 21, 2017) 

(dismissing a complaint alleging that a nonfederal committee’s mailers and doorhangers were impermissibly 

coordinated with a federal candidate committee after finding that the conduct prong was not met; therefore, whether 

doorhangers met the content prong by constituting public communications was immaterial to the analysis); Factual 

& Legal Analysis, MUR 6778 (David Hale for Congress) (Nov. 5, 2015) (exercising prosecutorial discretion to 

dismiss complaint alleging that a disclaimer printed on a doorhanger did not comply with the Commission’s 

technical requirements for disclaimers); see also Final Audit Rep. of the Comm’n at 19-20, Ky. State Democratic 

Cent. Exec. Comm. (LRA 1107) (Dec. 14, 2021) (noting that the Commission did not approve the Office of the 

General Counsel’s view that doorhangers were public communications and that the Office of the General Counsel 

had initially concluded that doorhangers were not public communications in its legal analysis dated December 14, 

2021). In none of these cases did the Office of General Counsel attempt to square its analysis with the Commission’s 

conclusion in the 2006 E&J that a “public communication” requires dissemination through an intermediary.

26 11 C.F.R. § 109.21(c). 27 Id. § 109.21(a). 28 See First Gen. Counsel’s Rep. at 8, MUR 6477 (Turn Right USA) (Dec. 27, 2011); First Gen. Counsel’s Rep. at 

13, MUR 6502 (Nebraska Democratic Party) (May 17, 2012); First Gen. Counsel’s Rep. at 7, MUR 6522 (Lisa 

Wilson-Foley for Congress) (Feb. 5, 2013); First Gen. Counsel’s Rep. at 6-7, MUR 6657 (Akin for Senate) (May 6, 

2013); First Gen. Counsel’s Rep. at 4-5, MUR 6722 (House Majority PAC) (Aug. 6, 2013).

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Commission’s regulations. In a 2011 advisory opinion, the Commission opined that a sponsor’s 

“website and email communications to the general public soliciting contributions to certain 

Federal candidates will not result in in-kind contributions to those Federal candidates, because 

the communications will not be ‘coordinated communications’ under the Act and Commission 

regulations.”29 In the 2022 advisory opinion referenced above, the Commission once again 

confirmed that communications that “do not satisfy the content prong of the coordinated 

communications test ... are not in-kind contributions.”30 And in a recent enforcement action, the

Office of General Counsel opined that “[b]ecause [a nonauthorized committee’s] emails 

soliciting contributions to [a federal candidate] do not satisfy the content prong, they cannot be 

coordinated communications under 11 C.F.R. § 109.21. In turn, because [the nonauthorized 

committee’s] email solicitations are not coordinated communications, their costs are not treated 

as in-kind contributions.”31

The Paid Canvass fails the content prong. “For a communication to satisfy the content prong, it 

must, among, other things, be either an ‘electioneering communication’ or a ‘public 

communication.’” 32 As set forth above, the Paid Canvass is neither an electioneering 

communication nor a public communication. Because the Paid Canvass fails the content prong, it 

is not a coordinated communication; and because it is not a coordinated communication, its costs 

are not treated as in-kind contributions. 

Very truly yours, 

Jonathan S. Berkon

Courtney T. Weisman

Sarah N. Mahmood 

Counsel to Texas Majority PAC

29 FEC Adv. Op. 2011-14 (Utah Bankers Association) (Sept. 22, 2011). 30 FEC Adv. Op. 2022-20 (Maggie for NH) at 5, supra n.14. 31 First Gen. Counsel’s Rep. at 17, MUR 7943 (Common Good Virginia, et. al.) (March 8, 2023). 32 Id.

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From: Jon Berkon

To: Lindsay Bird

Cc: Robert Knop

Subject: RE: Texas Majority PAC

Date: Monday, September 11, 2023 6:41:58 PM

Confirmed – thank you, Lindsay.

Jon Berkon

Elias Law Group LLP

250 Massachusetts Ave NW, Suite 400

Washington DC 20001

W: 202-968-4511

jberkon@elias.law

CONFIDENTIAL: This email may contain privileged or confidential information and is for the sole use of the intended

recipient(s). Any unauthorized use or disclosure of this communication is prohibited. If you believe that you have received

this email in error, please notify the sender immediately and delete it from your system.

From: Lindsay Bird <lbird@fec.gov> 

Sent: Monday, September 11, 2023 6:31 AM

To: Jon Berkon <jberkon@elias.law>

Cc: Robert Knop <rknop@fec.gov>

Subject: Texas Majority PAC

Good morning Mr. Berkon,

Thank you for providing additional information to supplement your advisory opinion request on

behalf of Texas Majority PAC. We would like to verify our understanding of the information. Please

respond to this email to confirm the accuracy of the information below, or to clarify or correct any

information as necessary. Please note that your response may become part of the advisory opinion

request. If so, it will be posted on the Commission’s website.

The Committee would preselect the voters who would be visited by the canvassers. The

vendor would not establish or identify the audience for the canvassing program.

Sincerely,

Lindsay Bird

Staff Attorney

Federal Election Commission

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